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Shyam Roy Vs. Grindlays Bank Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 839 of 1983
Judge
Reported in[1984]56CompCas371(Cal),[1984]150ITR263(Cal)
ActsCode of Civil Procedure (CPC) - Section 115; ;Income-tax Act, 1961; ;Income-tax Rules - Rule 16
AppellantShyam Roy
RespondentGrindlays Bank Ltd. and ors.
Appellant AdvocateMihirlal Bhattacharya and ;Mini Ghosh, Advs.
Respondent AdvocateP. Ganguly and ;K.N. Laha, Advs.
Cases ReferredDebabrata Mukherjee v. Kalyan Kumar Roy
Excerpt:
- .....case no. 2 of 1978, in the court of the first subordinate judge, alipore, in respect of the suit property was null and void. the plaintiff also prayed for permanent injunction restraining, the defendants from transferring, assigning, encumbering and/or changing the nature and character of the suit property and front disturbing the enjoyment and possession of the plaintiff in respect of the suit property and from disconnecting electric supply, water supply, etc. the plaintiff also prayed for permanent injunction restraining the defendants from giving effect to the auction sale and to act on it in any form and from proceeding with money execution case no. 3 of 1980, of the court of the first subordinate judge at alipore, and proceeding with the suit for recovery of possession.....
Judgment:

Sachindra Nath Sanyal, J.

1. In this application under Section 115 of the CPC, the plaintiff has challenged the judgment of the learned Additional District Judge, Fourth Court, Alipore, dated January 26, 1983, dismissing and vacating the order passed in the miscellaneous appeal oh July 21, 1082, for preservation of the status quo.

2. The plaintiff instituted the suit on June 17, 1982, for a declaration that the auction sale held on March 21, 1980 and confirmed oil May 6, 1980, in Money Execution Case No. 2 of 1978, in the Court of the First Subordinate Judge, Alipore, in respect of the suit property was null and void. The plaintiff also prayed for permanent injunction restraining, the defendants from transferring, assigning, encumbering and/or changing the nature and character of the suit property and front disturbing the enjoyment and possession of the plaintiff in respect of the suit property and from disconnecting electric supply, water supply, etc. The plaintiff also prayed for permanent injunction restraining the defendants from giving effect to the auction sale and to act on it in any form and from proceeding with Money Execution Case No. 3 of 1980, of the Court of the First Subordinate Judge at Alipore, and proceeding with the suit for recovery of possession against the plaintiff in respect of the suit property by defendant No. 2 in the Court of the learned Second Munsif, Alipore, being Title Suit No. 513of 1981.

3. The plaintiff filed an application for temporary injunction. The learned munsif by order dated June 17, 1982, issued a notice upon the defendants to show cause why the prayer should not be granted. He, however, refused the plaintiff's prayer for ad interim injunction. Being aggrieved, the plaintiff preferred an appeal, being Miscellaneous Appeal No. 417 of 1982, before the learned District Judge, 24-Parganas. The plaintiff, filed an application under Order 39, Rules 1 and 2, CPC, before the learned District Judge, 24-Parganas, praying for temporary injunction. The learned judge directed the respondents to maintain the said property in status quo. Thereafter, by the impugned judgment, the appeal was dismissed and the order was vacated. Mr. Mihirlal Bhattacharya, learned advocate appearing in support of the rule, argued that having regard to the circumstances of thecase, the plaintiff was entitled to ad interim injunction as he had a prima facie case fit enough to come to trial and in such circumstances the status quo of the property should have been maintained. Tax recovery proceedings against the petitioner had been initiated, prior to the auction sale and, as such in view of Rule 16 of Schedule II to the I.T. Act, 1961, the civil court had no jurisdiction to issue any process against the suit property in execution of a decree for payment of money. The auction sale was thus void and as such the plaintiff's right to the property remained intact and he was entitled to retain possession of the same. In support of his argument, the learned advocate for the petitioner has referred to the cases of (1) Sriniwas Pandit v. S. Jagjeet Singh Sawhney : [1976]104ITR20(Delhi) ; (2) Inayat Hussain v. Union of India : [1980]122ITR227(Bom) and (3) Debabrata Mukherjee v. Kalyan Kumar Roy [1981] 1 CLJ 339.

4. The learned advocate for the opposite parties has argued that the decree was obtained against the plaintiff before the original side of this court in Suit No. 63 of 1976 arid the said decree was put into execution in Money Execution Case No. 2 of 1978, in the court of the Subordinate Judge, Alipore, and the property was auction purchased by opposite party No. 2. It has been further contended that the auction sale was prior to any proceeding for recovery of taxes. It has been contended by the learned advocate that the learned judge was justified in rejecting the prayer for ad interim injunction and vacating the order for maintenance of status quo, He has argued that this court should not in revision interfere with the said order.

5. After hearing the learned advocates, I am of the opinion that the learned judge has acted with material irregularity in not considering all the relevant questions. The petitioner has challenged the auction sale relying upon the provisions of Rule 16 of Schedule II to the I. T. Act, 1961. Moreover, the learned judge himself found that the petitioner was in possession of a portion of the premises. In such circumstances, in order to prevent multiplicity of proceedings, status quo of the property should have been maintained as it should be remembered that the petitioner's application for temporary injunction is pending before the trial court. In the circumstances, I am of the opinion that the case should be sent back to the learned trial court for expeditious hearing of the application for temporary injunction. In the meantime, status quo of the property should be maintained till the hearing of the application for temporary injunction. In this connection it may be stated that I have expressed no opinion regarding the respective merits of the case of the parties and the learned munsif will be at liberty to hear the application for temporary injunction without being influenced in any way by any observation that might have been made in this judgment. The only limitation, however, will be that the status quo of the property should be maintained.

6. The rule is thus made absolute. The impugned order is set aside and the case is sent back to the learned civil court for disposal of the application for temporary injunction in accordance with law. There will be no order as to costs.

7. Let the records be sent below forthwith.


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